The 2 Blagojevich trials

February 07, 2010

Thursday brought a vital but undramatic development in the case of United States of America vs. Rod Blagojevich. It's properly called the "Second Superseding Indictment," and it's the sort of document that lawyers and people who don't get out much find irresistibly sexy.

The new indictment will drive the trial of Blagojevich that's scheduled to start before a federal judge in three-plus months. But it's only a distraction in the other Blagojevich trial, the one playing out right now in the court of public opinion.

To review the bidding: Federal prosecutors previously charged the defrocked governor with 16 criminal counts, 11 of them dependent on a disputed fraud statute known as the "honest services" law. The essence of that concept, as applied here, is that citizens are entitled to the honest services of public officials they employ. The U.S. Supreme Court, in its consideration of three unrelated cases, now is weighing whether to gut or retain the honest services law.

We hope the Supremes don't strip prosecutors of this valuable tool for combating public corruption. But if that happens, U.S. Attorney Patrick Fitzgerald can prosecute Blagojevich for the same alleged crimes as laid out in the last indictment, but this time under different federal statutes. Grand jurors have obliged by offering up this new, or superseding, indictment.

It's as if a plumber fears his pipe wrench will be too long to let him get at the leak, and brings along his Vise-Grips, just in case. That does add weight to the tool bag: In Blagojevich's case, what was 75 pages of accusations is now 113 pages of similar accusations.

The new charges would be somewhat more difficult to prove than an "honest services" case. But the feds have been confident that they had strong evidence on all of the criminal counts, honest services law or no. The new indictment includes the previous counts plus eight new ones. If the Supreme Court invalidates or upholds the "honest services" law, prosecutors can dump some old or new counts -- and then proceed with the others.

We're content to let jurors sort out the ex-governor's innocence or guilt. Which brings us to that second Blagojevich trial:

Almost from the moment of his arrest on Dec. 9, 2008, Blagojevich hasn't been playing the part of the typical defendant who wants to stall for time or hide behind his lawyers. He says he wants his day in court, and he misses no opportunity to publicly proclaim his innocence. We keep waiting for him to erect his own radio transmission tower and launch Air Rod. He speaks, and speaks, like a man who wants to put on trial the workings of Illinois government that his fellow Democrats control.

Blagojevich surely hopes all 12 of his jurors find him not guilty. But as he learned from his Pepperdine law profs, he needs only one juror to find the government's case unconvincing beyond a reasonable doubt.

That's where the court of public opinion can prove hospitable. Potential jurors can listen to his arguments and be swayed one way or another. They can decide that he's a man of mercy who deserves mercy or something less. They can conclude that he's a charismatic victim of zealous prosecutors or, alternately, not so much.

And Blagojevich isn't the only voice that's played to the court of public opinion. On the day of his arrest, Fitzgerald told reporters, "Gov. Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree." He added that the then-governor's "conduct would make Lincoln roll over in his grave."

The feds later dubbed the defendant's alleged scheme to personally profit from his governorship "the Blagojevich Enterprise."

The two trials converge on June 3. Nothing in Thursday's indictment that should lead defense attorneys to request a delay. We hope the schedule holds. Rod Blagojevich deserves justice, swift and sure.